People For the American Way

Trump Judge Casts Deciding Vote to Dismiss Prisoner’s Complaint that Officials Are Deliberately Indifferent to COVID-19 Risk: Confirmed Judges, Confirmed Fears

News and Analysis
Trump Judge Casts Deciding Vote to Dismiss Prisoner’s Complaint that Officials Are Deliberately Indifferent to COVID-19 Risk:  Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.


Trump Sixth Circuit judge Amul Thapar cast the deciding vote to affirm  the dismissal of a prisoner’s complaint that prison officials disregarded orders from Governor Whitmer and were deliberately indifferent to his extreme risk of contracting COVID-19 due to prison conditions. The 2-1 April 2021 unsigned order and opinion was in Hill v Whitmer, 2021 U.S. App. Lexis 10689 (6th Cir. April 14, 2021).

Andrew Lee-Leo Hill is a Michigan prisoner who filed a federal complaint on his own, contending that he is being incarcerated under conditions posing a serious and unreasonable risk to his health and safety due to COVID-19. Specifically, he maintained that he is at a particular high risk because he is diabetic, that officials have “transferred infected prisoners to the facility where Hill is incarcerated” despite state general orders to the contrary, that officials have disregarded “executive orders issued by Governor Whitmer” and have “failed to ensure” proper social distancing, and that officials were thus “deliberately indifferent to certain conditions of confinement that exposed him to a substantial risk of serious harm” from COVID-19.

The district judge dismissed the complaint on its face and refused to allow any discovery or amendment of the complaint. Relying in part on a website maintained by the Michigan Department of Corrections (MDOC), the judge suggested that MDOC had “taken extensive steps to address the risk” of COVID-19 and that Hill had “failed to allege facts” to support his complaint. Hill appealed.

In a 2-1 unsigned order and opinion, Trump judge Thapar cast the deciding vote to affirm dismissal of Hill’s complaint. Based on the website and previous decisions concerning MDOC’s actions relating to COVID-19, the majority claimed that Hill “did not state a plausible claim” of deliberate indifference to a substantial risk of serious harm under the Eighth Amendment.

Judge Martha Craig Daughtery strongly dissented. She pointed out that since the case was resolved at the early motion to dismiss stage without any discovery, the court was required to “accept as true” the facts contained in a complaint that is “plausible on its face” and should not “consider matters outside the complaint.” It was thus clearly improper for the lower court and the majority to base their views in part on the MDOC website and its “selfserving proclamation” about actions to address COVID-19, which Hill had reasonably disputed as applied to his situation. At this stage of the case, Daughtery concluded, Hill had “offered sufficient allegations to support a deliberate indifference claim.”

As a result of Trump judge Thapar’s deciding vote, however, Hill will not even have a chance to prove that officials should be required to take additional steps so that he is not subject to an extreme risk of the deadly COVID-19 disease. The case is yet another example of Trump judges refusing to order or approve necessary government action to address the pandemic, and emphasizes the importance of our fight for our courts.


Amul Thapar, Confirmed Judges Confirmed Fears, covid-19, Sixth Circuit Court of Appeals